Moriarty v. City of New York

116 N.Y.S. 323 | N.Y. App. Div. | 1909

Gaynor, J. :

The time that the stone was being moved about on the street, two weeks, was ample to base a finding of constructive notice to the city on. It cannot be held, as the learned counsel for the appellant urges, citing the recent case of Orser v. City of New York (193 N. Y. 537) as authority, that every time the stone was shoved 6 inches, or a foot, or 6 feet, to a new position, a new question of constructive notice, dating from that time, arose, and that as there is no evidence to show how long it was on the precise spot where it was when the plaintiff tripped on it, there is no evidence of a sufficient length of time to base such notice on. It is evident that the whole time during which the stone was being shoved about from one spot to another within the small space in which it was all the time, i. e., within a circle of a radius of about 6 feet, has to be considered in establishing constructive notice to the city, and not merely the time elapsing after it was put on the precise spot where it was when the plaintiff tripped on it. It is true that it is said in the opinion in the Orser case that the law of constructive notice could not be applied to the plaintiff’s case “ unless there was evidence tending to show the presence of the stone in the precise place where she fell over it ” long enough to impute to the city officials notice that it was there. But it is also said there that the evidence showed that the stone had been in the “ general locality ” for two weeks, and that it had been removed “ to the neighborhood of the telegraph pole ”, near which pole the plaintiff was hurt. This phrase “ general locality ”, and word “ neighborhood ”, imply a considerable territory, and the removal of the stone from the place where it was to another neighborhood, namely, the “ neighborhood ” in which the telegraph pole was. They cannot be understood in careful legal statement, if even in poetical or oratorical license or looseness, as describing a circle on a street of a diameter of 12 feet. We are told, however, that if the record of that case "be looked into it will-be found that the portable stone that caused the accident there was also all the while within a 12 foot circle, instead of from place to place in a territory large enough to be called a “ general locality ” or a “ neighborhood ” ; but the decision must be tested and interpreted as based on and applicable to the state of facts stated in the opinion.

The judgment should be affirmed.

Present—Woodward, Jenks, Gaynor, Burr and Rich, JJ.

Judgment and order unanimously affirmed, with costs.